Nelson Mattfield v Jacksons Drawing Supplies Pty Ltd

[2019] FWC 404

[2019] FWC 404

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nelson Mattfield
v
Jacksons Drawing Supplies Pty Ltd
(U2018/12283)

DEPUTY PRESIDENT BINET PERTH, 24 JANUARY 2019

Application for an unfair dismissal remedy – application dismissed – failure to comply with directions – application to dismiss pursuant to s.399A – application dismissed.

[1] On 28 November 2018, Mr Nelson Mattfield (Mr Mattfield) filed an application (Application) pursuant to section 394 of the Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Jacksons Drawing Supplies Pty Ltd (Jacksons).

[2] The parties attended a conciliation conference before me on 7 January 2019, but the issues in dispute could not be resolved.

[3] In light of this the Application was listed for a hearing on 12 February 2019 to determine the merit of the Application.

[4] At the conference Mr Mattfield was informed that directions would be issued for the filing of submissions and evidence for the hearing and determination of the Application and that he must comply strictly with the deadlines contained in those directions or the Application may be dismissed.

[5] On 9 January 2019, directions outlining dates for the submission of materials by the parties were issued (Directions). The Directions required Mr Mattfield to file and serve any submissions or evidence on which he sought to rely by close of business Thursday 17 January 2019 and Jacksons by close of business, Thursday 24 January 2019.

[6] On Friday 18 January 2019, Chambers emailed the parties noting that Mr Mattfield had not filed the materials as required by the Directions. Mr Mattfield was granted an extension until 10am on Monday 21 January 2019 to either file his outstanding materials or discontinue the Application if he no longer wished to proceed.

[7] On Monday 21 January 2019, Chambers emailed the parties noting that Mr Mattfield had not filed the materials as required. Jacksons was invited to apply by 12 noon on Tuesday 22 January 2019, for the Application to be dismissed (Dismissal Application). Mr Mattfield was invited to make written submissions in response to the Dismissal Application by 12 noon Wednesday 23 January 2019. The parties were also advised to notify Chambers if they wished to make oral submissions in relation to the Dismissal Application.

[8] No response or written submissions were filed by Mr Mattfield. In the afternoon of Monday 21 January 2019, Jacksons filed with Chambers and served on Mr Mattfield an application for the matter to be dismissed pursuant to sections 399A of the FW Act on the grounds that Mr Mattfield unreasonably failed to comply with a direction of the FWC when he failed to file his materials in accordance with the Directions.

[9] On Monday 21 January 2019 a further email, was sent to the parties reminding Mr Mattfield that he had until 12 noon on Wednesday 23 January 2019 to file submissions as to why the Application should not be dismissed.

[10] Section 399A of the FW Act provides as follows:

“399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: for another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: the FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.”

[11] To date the FWC has not received any correspondence or written submissions from Mr Mattfield.

[19] On the application of Jacksons and in the exercise of my discretion under section 399A of the FW Act, I have decided to dismiss the Application. An order to this effect [PR704091] will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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